Sandow
ANALYZING CIV PRO PROBLEM
1. Personal Jurisdiction: First, make sure that the court has “personal jurisdiction” or “jurisdiction over the parties.” You must check to make sure that:
a. D had minimum contacts with the forum state (whether the court is a state or federal court); AND
b. D received such notice and opportunity to be heard as to satisfy the constitutional requirements of due process.
2. Venue: Then, check whether venue was correct. In federal court suits, the venue requirement describes what judicial district the case may be heard in. Essentially, the case must be heard either:
a. in any district where the defendant resides (with special rules for multi - defendant cases; OR
b. in any district in which a substantial part of the events giving rise to the claim occurred. See 28 USC §1391
3. Subject Matter jurisdiction: If this case is a federal case, you must then ask whether the court has subject matter jurisdiction. Essentially, this means that one of the following two things must be true:
a. Diversity: Either the case is between citizens of different states (with “complete diversity” required, so that no P is a citizen of the same state as any D) and at least $75,000 is at stake; OR
b. Federal Question: The case raises a “federal question.” Essentially, this means that P’s right to recover stems from the US Constitution, a federal treaty, or an act of Congress. (There is no minimum amount required to be at stake in federal question cases.)
4. Pleading: Next, you must examine whether the pleadings are proper.
5. Discovery: Next, you may have a complex of issues relating to pre - trial discovery.
6. Ascertaining applicable law: Now, figure out what jurisdiction’s law should be used in the case. The most important problem of this type is: In a diversity case may the federal court apply its own concepts of “federal common law,” or must the court apply the law of the state where the federal court sits? If the state has a substantive law (whether a statute or judge made principle) that is on point, the federal court sitting in diversity must apply that law. This is the “rule” of Erie v Tompkins (Example: In a diversity case concerning negligence, the federal court must normally apply the negligence law of the state where the court sits).
7. Trial Procedure: Next, you may face a series of issues relating to trial procedure.
8. Multi - party and multi - claim litigation: If there is more than one claim in the case, or more than the basic two parties ( a single plaintiff and a single defendant), you will face a whole hostof issues, related to the multi-party or multi-claim nature of the litigation. You must be prepared to deal with the various methods of bringing multiple parties and multiple claims into a case. In federal courts:
a) Counterclaim: D may make a claim against P, by use of the counterclaim (FRCP 13). Check whether the counterclaim is “permissive” or ” compulsory.” (Also remember that 3rd parties, who are neither the original P nor original D may make a counterclaim).
b) Joinder of claims: Once a party has made a claim against some other party, she may then make any other claim she wishes against that party. This is joinder of claims. (Rule 18(a).
c) Joinder of parties: Multiple parties may join their actions together. Check to see whether either. FRCP 19 & 20.
d) Class actions: Check whether a class action is available as a device to handle the handle the claims of many similarly - situated Ds. (FRCP 23). Look for the possibility of a class action wherever there are 25 or more similarly - situated Ps or similarly - situated Ds.
e) Intervention: A person who is not initially part of a lawsuit may be able to enter the suit on his own initiative, under the doctrine of intervention. (FRCP 24). Check whether the intervention is “of right” or “permissive.”
f) Interpleader: Where a party owes something to two or more other persons, but isn’t sure which, that party may want to use the device of interpleader to prevent being made to pay the same claim twice. After checking whether interpleader might be desirable, decide whether the stakeholder should use “statutory interpleader” or “Rule interpleader.” (28 USC §1335 - statutory interpleader) & (FRCP 22 - Rule interpleader).
g) Third Party practice (impleader): Anytime D has a potential claim against some third person who is not already in the lawsuit, by which that third person will be liable to D for some or all of P’s recovery against D, D should be able to “implead” the third person. (FRCP 14(a). Once a third - party D is brought into the case, consider what other claims might now be available (e.g. a counterclaim by the third - party D against the third - party P, a cross - claim against some other third - party D, a counterclaim against the original P, etc.).
h) Cross - claims: Check to see whether any party has made, or should make, a claim against a co - party. This is a cross - claim. (FRCP 13(g).
i) Jurisdiction: For any of these multi - party or multi - claim devices, check to see whether the requirements of personal jurisdiction and subject matter jurisdiction have been satisfied. To do this, you will need to know whether the doctrine of “supplemental” jurisdiction applies to the particular device in question. If it does not, the new claim, or the new party, will typically have to independently meet the requirements of federal subject matter jurisdiction. (EX. P, from MA, sues D, from CT, in diversity. X, from MA, wants to intervene in the case on the side of D. Because supplemental jurisdiction does not apply to intervention, X must independently satisfy the requirement of diversity, which he cannot do because he is a citizen of the same state as P. Therefore, X cannot intervene).
9. Former adjudication: Lastly, check whether the results in some prior litigation are binding in the current suit. Distinguish between situations in which the judgment in the prior suit is binding on an entire cause of action in the present suit (under the doctrines of merger and bar), and the situation where a finding of fact is binding on the current suit, even though the judgment itself is not binding (the “collateral estoppel” situation).
a. Non - mutual collateral estoppel: Where a “stranger” to the first action (one not a party to that first action) now seeks to take advantage of a finding of fact in that first suit, consider whether this “non - mutual” collateral estoppel should be allowed.
b. Full Faith and Credit: Lastly, if the two suits have taken place in different jurisdictions, consider to what extent the principles of Full Faith and Credit limit the second court’s freedom to ignore what happened in the first suit.
JURISDICTION OVER THE PARTIES
I. General Principles
A. 2 kinds of jurisdiction: before a court can decide a case, it must have jurisdiction over the parties as well as over the subject matter.
1. Subject matter jurisdiction: subject matter jurisdiction refers to the courts power to decide the kind of case before it.
2. jurisdiction over the parties: jurisdiction over the parties refers to whether the court has jurisdiction to decide a case between the particular parties or concerning the property.
B. Jurisdiction over the parties: there are two distinctions which must be met before a court has jurisdiction over the parties:
1) substantive due process: the court must have power to act, either upon a given person or the property as to subject to personal liability.
2) Procedural due process: the court must give the defendant adequate notice of the action against him and an opportunity to be heard.
C. 3 kinds of jurisdiction over the parties:
1) in personam:
2) in-rem: jurisdiction over the thing, gives the court authority to adjudicate a claim made about a piece of property or about a status.
3) quasi in rem: the action is begun by seizing property owned by (attachment) or a debt to (garnishment) the defendant, within the forum state. The thing seized is a pretext for the court to decide the case without having jurisdiction over the defendants person. Any judgment affects only the property seized, and the judgment cannot be sued upon in any other court.
4) Minimum contacts requirement: D has to have taken actions that were purposefully directed towards the forum state. Without it would violate the due process 14th amendment. Unreasonable exercise: even if defendant has the requisite “minimum contacts” with the forum state, the court will not exercise jurisdiction if considerations of “fair play” and substantial justice” would require making defendant defend in the forum state so unreasonable as to constitute a due process violation.
D. Long-arm statute: a statute which permits the court of a state to obtain jurisdiction over persons not physically present within the state at the time of service.
1. substituted service: long arms typically provide for substitute means of service since in state personal service is not possible.
II) JURISDICTION OVER INDIVIDUALS
A. categories
1) presence within the forum state
2) domicile or residence
3) consent to be sued within the forum state
4) driving a car within the forum state
5) committing a tortious act
6) ownership of property
7) conducting business
8) being married in or living while married in the forum
B. presence: catch em here and you are in the clear
C. domicile: current dwelling place and intent to remain an indefinite period
D. consent: even if no contacts with the forum state
III) JURISDICTION FOR CORPORATIONS
A) domestic corporations: any action may be brought against a domestic corporation or one in which incorporated in the state.
B) foreign corporations generally:
1) minimum contacts: can not offend traditional notions of fair play and substantial justice. (intl shoe v washington)
2) dealings with residents of foreign states: contacts can be found in these corporations usually if the minimum contacts show that the corporation somehow “voluntarily sought to do business in or with the residents of the forum state”
C) Use of Agents: Sometimes an out of state company does not itself conduct activities within the forum state , but uses another company as its agent in the state. Even though all business within the state is done by the agent, the principal (foreign corporation) can be sued there, if the agent does a significant amount of business on the foreign company’s behalf.
D) Claims unrelated to in-state activities: All of the above law assumes that the claim relates to D’s in-state activities. Where the cause of action does not arise from the company’s in - state activities, greater contacts between D and the forum state are required. The in - state activities in this situation must be “systematic and continuous.” (Helicopteros)
E) Products liability: The requirement of “minimum contacts” with the forum state has special bite in products liability cases.
1. Effort to market in forum state: The mere fact that a product manufactured or sold by D outside of the forum state finds its way into the forum state and causes injury there is notenough to subject D to personal jurisdiction there. Instead, D can be sued in the forum state only if it made some effort to market in the forum state, either directly or indirectly. (WWVW)
2. Knowledge of in - state sales enough: But if the out of state manufacturer makes or sells a product that it knows will be eventually sold in the forum state, this fact by itself is probably enough to establish minimum contacts. However, if this is the only contact that exists, it may nonetheless be unreasonable to make D defend there, and thus violate due process. (Asahi)
F) Unreasonableness: Even where minimum contacts exist, it will be a violation of due process for the court to hear a case against a non - resident D where it would be unreasonable for the suit to be heard. The more burdensome it is to the D to have to litigate the case in the forum state, the more likely this result is to occur.
G) Suits based on contractual relationship: The requisite “minimum contacts” are more likely to be found where one party to a contract is a resident of the forum state. But the fact that one party to a contract is a resident does not by itself automatically mean that the other party has “minimum contacts” - the existence of a contract is just one factor to look at.
1. Contractual relationship involving the state: Where the contract itself somehow ties the parties’ business activities into the forum state, this will be an important factor tending to show the existence of minimum contacts. Ex. If one party is to make payments to the other, and the latter will be receiving the payments in the forum state, this stream of payments coming into the state is likely to establish minimum contacts and thus to permit suit against the payor. (Burger King)
2. Choice of law clause: Where there is a contract between the parties to the suit, the fact that the contract contains a choice of law clause requiring use of the forum state’s law will also be a factor (though not a dispositive one) tending towards a finding of minimum contacts. (Burger King)
3. “Reasonable anticipation” of Defendant: In suits relating to a contract, as with any other kind of suit, the minimum contacts issue always boils down to this: Could the D have reasonably anticipated being hailed into court in the forum state? The fact that the other party was a resident of the forum state, the fact that a stream of payments went into the forum state, and the fact that the forum state’s law was used in the contract, are all non - dispositive, but important, factors tending towards the conclusion that the out - of - stater had minimum contacts with the forum state.
H) Class action plaintiffs: An “absent” plaintiff in a class action that takes place in the forum state may be bound by the decision in the case, even if that P did not have minimum contacts with the forum state. (Phillips Petroleum Co. v Shutts)
IV. FEDERAL JURISDICTION OVER THE PARTIES
A. General Principles: To determine whether a federal court has personal jurisdiction over the D, you must check three things:
1. Territory for service: Whether service took place within the appropriate territory;
2. Manner of Service: Whether service was carried out in the correct manner; and
3. Amenability: Whether the D was to the federal suit.
B. Territory for Service:
1. General Rule: As a general rule, in both diversity actions and federal question cases, service of process may be made only: (1) within the territorial limits of the state in which the District Court sits; OR (2) anywhere else permitted by the state law of the state where the District Court sits. FRCP 4(k)(1)(A).
a. within territorial limits of the state
b. out of state service based on state law (long - arm)
2. Nationwide Service of Process: In several kinds of cases, Congress has provided for nationwide service of process. Suits against federal officials and agencies, and suits based on statutory interpleader, are examples of nationwide service.
3. Foreign D not servable in any state: Rule 4(k)(2) allows a federal question suit to be brought against any person or organization who cannot be sued in any state court (almost always because they are a foreigner).
4. Gaps possible: a D who is not located in the state where the district court sits may not be served if he does not fall within one of the special cases described above (servable pursuant to state long arm statute, nationwide service or foreign defendant not servable in any state), even if he has the constitutionally - required minimum contacts with the forum. This is true whether the case is based on diversity or federal question.
C. Manner of Service: Once you determine that the party to be served lies within the territory described above, you must determine if the service was carried out in the correct manner.
1. Individual: Service on an individual (Rule 4 (e) may be made in any of several ways:
a. Personal: by serving him personally
b. Substitute: by handing the summons & complaint to a person of suitable age and discretion residing at D’s residence
c. Agent: by serving an agent appointed or designated by law to receive process (Ex. Many states designate the Director of Motor Vehicles as the agent to receive process in suits involving car accidents)
d. Local state law: By serving D in the manner provided by either: (1) the law of the state where the district court sits, if that state has such a provision, or (2) the law of the state where the person is being served (Ex. P brings action against D, a resident of CA, in NJ federal ct, and wishes to serve him by certified mail. Service will be possible if either the Courts of NJ or CA allow certified mail service.)
2. Corporation: Service on a corporation may be made by leaving the papers with an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive process for the corporation. (FRCP 4(h)(1) first sentence).
3. Waiver of service: Rule 4(d) allows P to in effect serve the summons and complaint by mail, provided that the defendant cooperates.P mails to D a request for waiver of service; if D agrees no actual in - person service is needed.